People v. Cook

• Decision Date: 25 May 2017
• Parties: The PEOPLE of the State of New York, Respondent, v. Wayne C. COOK, Appellant.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 1543

52 N.Y.S.3d 680 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Wayne C. COOK, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

May 25, 2017.

Randolph V. Kruman, Cortland, for appellant.

Stephen K. Cornwell Jr., District Attorney, Binghamton, for respondent.

Before: PETERS, P.J., McCARTHY, EGAN JR., DEVINE and MULVEY, JJ.

DEVINE, J.

Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered August 23, 2013, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the third degree.

In satisfaction of a two-count indictment, defendant pleaded guilty to the reduced charge of attempted criminal possession of a weapon in the third degree. County Court imposed the promised sentence of time served with a three-year conditional discharge and ordered defendant to pay agreed-upon restitution, which defendant had already paid at the time of sentencing. Defendant now appeals.

We affirm. Defendant first contends that count 2 of the indictment was jurisdictionally defective due to its failure to allege that the firearm that he allegedly possessed was operable, a material element of the crime of criminal possession of a weapon in the third degree. The count at issue recited the specific section of the Penal Law under which defendant was charged, however, rendering the indictment jurisdictionally valid (see People v. Bonds, 148 A.D.3d 1304, 1305, 47 N.Y.S.3d 916 [2017] ; People v. Rapp, 133 A.D.3d 979, 980, 20 N.Y.S.3d 663 [2015] ). "Defendant's challenge here, although cloaked as a jurisdictional defect, is in fact addressed to the evidentiary sufficiency of the indictment" and, thus, was forfeited by his guilty plea (People v. Brice, 146 A.D.3d 1152, 1154, 46 N.Y.S.3d 282 [2017], lv. denied 29 N.Y.3d 996, ––– N.Y.S.3d ––––, – ––N.E.3d –––– [Apr. 20, 2017]; see People v. Price, 234 A.D.2d 978, 978, 652 N.Y.S.2d 453 [1996], lv. denied 90 N.Y.2d 862, 661 N.Y.S.2d 189, 683 N.E.2d 1063 [1997] ; People v. Fields, 208 A.D.2d 1050, 1051, 617 N.Y.S.2d 583 [1994], lv. denied 84 N.Y.2d 935, 621 N.Y.S.2d 532, 645 N.E.2d 1232 [1994] ).

Defendant next contends that his guilty plea was factually deficient because it failed to establish the element of operability necessary for a conviction of attempted criminal possession of a weapon in the third degree, but this issue is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion to withdraw his guilty plea (see People v. Dejesus, 146 A.D.3d 1077, 1078, 46 N.Y.S.3d 689 [2017] ; People v. Smith, 130 A.D.3d 1375, 1376, 12 N.Y.S.3d 921 [2015], lv. denied 26 N.Y.3d 1011, 20 N.Y.S.3d 552, 42 N.E.3d 222 [2015] ). The narrow exception to the preservation requirement was not implicated during the plea colloquy (see People v. Martinez–Velazquez, 89 A.D.3d 1318, 1319, 932 N.Y.S.2d 908 [2011] ) and, in any event, defendant did not need to engage in a factual recitation of the elements of the crime since he pleaded guilty to a lesser crime than the one charged in the indictment as part of the plea bargain (see People v. Moore, 71 N.Y.2d 1002, 1006, 530 N.Y.S.2d 94, 525 N.E.2d 740 [1988] ; People v. Banks, 137 A.D.3d 1458, 1459, 29 N.Y.S.3d 73 [2016] ).

Finally, contrary to defendant's contention, County Court did not err in ordering defendant to pay the cost of his extradition because he agreed to do so as part of the plea agreement (see People v....